When deciding to layoff employees, employers need to make sure that their decisions are based on business needs, rather than on a desire to get rid of employees with disabilities. Although the ADA protects individuals with disabilities against discrimination on the basis of disability, employees with disabilities are not protected against non-discriminatory layoffs. For example, employers can base their layoff decisions on such non-discriminatory criteria as productivity, seniority, or job category. However, if an employer bases its layoff decisions on productivity of employees, it cannot penalize employees for accommodations that were provided under the ADA. In its guidance on reasonable accommodation and undue hardship, the Equal Employment Opportunity Commission (EEOC) gives the following example:
Company X is having a reduction-in-force. The company decides that any employee who has missed more than four weeks in the past year will be terminated. An employee took five weeks of leave for treatment of his disability. The company cannot count those five weeks in determining whether to terminate this employee. Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA, question 19.
However, employers do not have to reassign employees with disabilities who were previously reassigned to a position now in line for a RIF, even if the original reassignment was an accommodation under ADA. Reassignment as an accommodation is considered only for employees who can no longer perform their jobs due to disability, not due to other issues. Of course, if other employees facing layoffs are allowed to compete for open positions, employees with disabilities should be allowed to do the same. If an employee with a disability competes for and wins an open position, that employee is entitled to accommodations if needed to perform the new position.